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REPORTABLE

                     IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO .8515  OF 2018  (Arising out of SLP (C) No 12590 of 2018)

WEST BENGAL STATE ELECTION COMMISSION    .....  APPELLANTS AND ORS

Versus  

COMMUNIST PARTY OF INDIA (MARXIST)     .....  RESPONDENTS AND ORS

WITH

CIVIL APPEAL NO.8516  OF 2018 (Arising out of SLP (C) No 15123 of 2018)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 After the process commenced in the State of West Bengal for elections to

the panchayats, a Division Bench of the Calcutta High Court issued directions on

8 May 2018 to the State Election Commission to accept nominations submitted in

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the  electronic  form.  The  names  of  those  candidates  were  directed  to  be

published in the list of candidates contesting the panchayat elections of 2018.  In

issuing  these  directions,  the  High  Court  was  conscious  of  the  fact  that  the

provisions of  the Information Technology Act  2000 did  not  apply  to  the West

Bengal  State  Election  Commission,  which  is  a  constitutional  authority.

Nonetheless,  the  High  Court  held  that  the  provisions  of  the  Information

Technology Act 2000 shall be deemed to be read into the provisions of the West

Bengal Elections Act 2003. Holding that such a construction would further the

democratic process and facilitate a fair and free election, the High Court issued

directions for the acceptance of nominations in the electronic form. The judgment

of the High Court has been challenged in these proceedings by the West Bengal

State Election Commission.  

3 Notice was issued by this Court on 10 May 2018 and the following interim

directions were issued:

“(i) There shall be a stay of the impugned judgment and oder  dated  8.5.2018  passed  by  the  Division  Bench  of  the High Cout;

(ii) The  Panchayat  election  scheduled  to  be  held  on 14.5.2018, shall proceed as per law;

(iii) The petitioners  i.e.  the  West  Bengal  State  Election Commission  and  its  functionaries  shall  see  to  it  that  the election which is scheduled for 14.5.2018 is held in absolute fairness, keeping in view the concept of purity of an election in a democracy;

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(iv) The election process in respect of the constituencies shall  be  completed  in  all  aspects  and  the  results  of  the election can be notified as per law; and

(v) The petitioners shall not notify the result in respect of the constituencies where there has been no contest, without the leave of this Court.”

4 Arrayed as respondents to these proceedings are the Communist Party of

India (Marxist), the State of West Bengal through the Secretary, Department of

Home, the Secretary in the Department of Panchayat and Rural Development,

the All India Trinamool Congress, Ananda Bazar Patrika, Times of India and the

Bharatiya Janata Party, West Bengal through its Vice President.  We have heard

learned  counsel  for  the  parties.   We  have  also  heard  a  large  number  of

intervenors in these proceedings.

5 A reference to  the  salient  events  will  facilitate  an understanding  of  the

controversy.  On 31 March 2018, the State government issued a notification for

holding panchayat elections in West Bengal on 1,3 and 5 May 2018.  The State

Election Commission announced a schedule for the ensuing panchayat elections,

exercising  power  under  Sections  42  and  43  of  the  West  Bengal  Panchayat

Elections Act 2003 (“Panchayat Elections Act”). The first notification issued by the

State Election Commission in respect of twelve districts stipulated the election

schedule for gram panchayats, panchayat samitis and zilla parishads governed

by the West Bengal Panchayat Act 1973.  The last date for making nominations

was 9 April 2018; scrutiny of nominations was to take place on 11 April 2018; the

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last  date  for  withdrawal  of  candidatures  was  16  April  2018;  and  the  poll,  if

necessary, was to be concluded on 1 May 2018.  By two other notifications also

of  2  April  2018,  the  election  schedule  was  announced  respectively  for  two

districts  and six  districts.   The election programme was the same,  save and

except for the dates of polling which were 3 and 5 May 2018.   

6 On 6 April 2018, a public interest litigation was moved before the Calcutta

High  Court  by  a  person  -  Adhir  Ranjan  Chowdhury  of  the  Indian  National

Congress for challenging the election notification.  Simultaneously a writ petition1

under  Article  32  of  the  Constitution  was  instituted  before  this  Court  by  the

Bharatiya  Janta  Party  (BJP)  in  which  inter  alia  there  was  a  specific  prayer

(extracted below) for a direction to accept nomination papers through e-mail:

“b. issue an appropriate writ, order or direction in the nature of mandamus directing the Respondent No 6 to take immediate steps  to  make arrangements  for  submission  of  nomination papers for the West Bengal State Panchayat Elections 2018 through email:”

The writ petition was disposed by a two Judge bench of this Court on 9 April

2018.  A grievance was made before this Court, based on newspaper reports,

that candidates who wished to contest the panchayat elections were not being

allowed to collect and submit their nomination forms as a result of the violent

actions of the supporters of the ruling party in the State.  This submission was

recorded by the Court:

1 W P (C) No 302 of 2018

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“Relying upon the newspaper reports which appeared in the Times  of  India,  Kolkata  edition  dated  03.04.2018  and 04.04.2018, the Statesman, Kolkata edition dated 04.04.2018 and  the  Telegraph  e-paper  preview,  the  learned  senior counsels  for  the  petitioner  submitted  that  the  petitioner’s candidates who want to contest  election for  the panchayat which  is  to  be  held  in  the  State  of  West  Bengal  are  not allowed to collect the nominations forms and to submit the same  on  account  of  violent  resistance  being  put  by  the supporters of the ruling party.”

This Court declined to interfere, since the election process had commenced and

relied on the judgment in Boddula Krishnaiah v State Election Commissioner,

A.P.2.  The Court however took notice of the grievance that candidates had been

prevented from submitting their nominations:

“However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain  and  file  their  nomination  papers.  This  also  stands fortified with the notification dated 05.04.2018 issued by the West  Bengal  State  Election  Commission  where  the  State Election Commission had provided additional venue for filing the nomination papers.”

This grievance, in the view of the Court, was for the State Election Commission

to consider at the behest of any political party or a candidate who desired to

contest the election.  Liberty was accordingly granted to them to approach the

State Election Commissioner who was directed to ensure the disposal  of  the

grievances in accordance with law, forthwith. This Court expressed the hope that

in order to ensure free and fair elections to the panchayats, the State Election

2 (1996) 3 SCC 416

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Commission  shall  take  appropriate  steps  to  remove  the  apprehensions  of

intending candidates. The petitions were accordingly disposed of.  

7 The  State  Election  Commission  issued  directions  on  9  April  2018,  in

exercise  of  its  power  under  Section  46(2)  of  the  Panchayat  Elections  Act,

extending the last date for submitting nominations by one day, that is until 10

April 2018.  In issuing this direction, the State Election Commission indicated the

following reasons:

“Whereas, information has been received through complaints, deputation etc. that intending candidates and proposers are being obstructed or prevented from making nomination; and Whereas,  many  intending  candidates  could  not  file  their nomination papers due to the above disruption; and Whereas, along with complaints made by the Political Parties some nomination papers that they allegedly could not submit before  the  Panchayat  Returning  Officers,  have  been annexed.”

8 The order of the State Election Commission extending the period for filing

of nominations was recalled immediately on the next day – 10 April 2018.  The

BJP  filed  a  writ  petition3 before  the  Calcutta  High  Court  inter  alia  seeking

directions  for  the  acceptance  of  nominations  and  police  assistance.   By  a

supplementary  affidavit,  the  validity  of  the  order  dated  10  April  2018  was

questioned.  The Calcutta High Court issued an interim direction suspending the

operation  of  the  notification of  the  State  Election  Commission  dated  10 April

2018.   On  11  April  2018  this  Court  was  also  moved  in  a  Miscellaneous

3 AST 9 of 2018

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Application by the BJP.  This Court  granted liberty  to move the Calcutta High

Court  where  proceedings  were  pending.  On  12  April  2018,  the  High  Court

directed the State Election Commission that before proceeding further with the

electoral exercise, it shall inform the Court on affidavit of the steps taken in terms

of its direction of 10 April 2018 and the order of this Court dated 9 April 2018. An

intra-court appeal against the order was dismissed on 16 April 2018, though with

a request to the learned Single Judge to dispose of the pending proceedings.   

9 The learned single Judge of the High Court delivered judgment on 20 April

2018 in which the following directions were issued:

“I) The order cancelling the extension of the day/date for filing nominations as issued by the Commission dated 10 th

April, 2018 stands quashed;

II) The Commission is  directed,  upon consultation with the State and the major collective stake holders, to issue a fresh  Notification  extending  the  day/date  for  filing nominations;

III) The  Commission  shall  then  reschedule  the  further dates in the election process as per statutory framework;

IV) The Commission shall then carry forward the electoral process from the extended day/date of filing nominations as directed by (II) above;

V) The cost of  Rs.5,00,000/- (Rupees five lakhs only) as directed to be deposited by the petitioners in AST 9 of 2018 by  order  of  12th April,  2018  and,  so  deposited  shall  be forwarded by the learned Registrar  General,  High Court  at Calcutta to the account of the Commission towards part of its secretariat costs.”

10 On 21  April  2018,  the  State  Election  Commission  issued  a  notification

extending the date for the filing of nominations to 23 April 2018; fixed 25 April

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2018 as the date for scrutiny and 28 April 2018 as the last date for the withdrawal

of candidature.  On 23 April 2018, the High Court, upon being moved by some of

the intending candidates, directed the State Election Commission to ensure the

acceptance of  nomination forms.  Three writ  petitions were moved before the

High  Court.   By  a  judgment  dated  24  April  2018,  the  learned  Single  Judge

declined to interfere with the election process observing that:

“This Court cannot be further unmindful of the fact that the order of 20th April, 2018 has been accepted and acted upon. The  participation  of  the  major  stake  holders,  including  the INC,  as  reflected  from  the  documents  filed  by  the Commission in Court today, disclose that each of their views have  been  noticed  prior  to  the  Commission  exercising  its prerogative in consultation with the State Government to re- extend the nomination date.

In view of the above movement of events this Court does not find  the  argument  of  Mr  Ghosal  to  the  effect  that  the Commission acted in hot haste to be acceptable.

Accordingly,  this  Court  does  not  intend  to  interrupt  the electoral exercise further and does not intervene by passing any direction in this petition.”

Writ Petition 4887 (W) of 2018 filed by the BJP and Writ Petition 4886 (W) of

2018 filed by the Party for Democratic Socialism were also disposed of.  

11 On 25 April  2018, the CPI (M) moved a writ  petition4 under Article 226

seeking  inter alia,  directions for (i) setting aside the entire election process; (ii)

removal of the State Election Commissioner; (iii) permission to file nominations in

the electronic form; (iv) deployment of security personnel other than those under

4 AST 11 of 2018

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the  control  of  the  state  government;  (v)  appointment  of  special  officers

responsible to the Court; and (vi) recording video footage of the entire process.

During the course of the hearing before the learned Single Judge on 25 April

2018, the only relief which was pressed on behalf of CPI (M) was that the State

Election  Commission must  accept  nominations  already filed,  in  the electronic

form. The learned Single Judge of the High Court declined to entertain the writ

petition.   

12 On 26 April 2018, polling dates were announced for 14 May 2018 by the

State Election Commission.  On 1 May 2018,  fresh writ  petitions were moved

before the learned Single  Judge of  the Calcutta  High Court.  The High Court

declined to issue any further directions having regard to its earlier orders. The

CPI  (M)  filed  an  appeal  before the  Division Bench against  the orders  of  the

learned  Single  Judge.  The  Division  Bench,  while  disposing  of  the  appeal,

directed the State Election Commission to accept nominations in the electronic

form of those candidates who had filed and submitted them electronically to the

panchayat returning officers by 3.00pm on 23 April  2018. The names of such

candidates were directed to be published in the list of candidates contesting the

Panchayat elections of 2018.

13 Appearing  on  behalf  of  the  State  Election  Commission,  Mr  Amarendra

Sharan, learned senior counsel submitted that (i)  the directions issued by the

High Court, after the last date of nominations and scrutiny, to accept nominations

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submitted electronically is contrary to the clear mandate of Section 46(1) of the

Panchayat Elections Act; (ii)  though this relief had been specifically sought in

proceedings under Article 32 before this Court in Writ Petition (C) 302 of 2018, it

had been declined; (iii) the directions issued by the High Court are contrary to the

mandate of Article 243 K of the Constitution since the provisions contained in the

Panchayat  Elections  Act  constitute  a  complete  code  regarding  the  filing  of

nominations;  (iv)  the  High  Court  was  manifestly  in  error  in  holding  that  the

Information Technology Act 2000 shall be deemed to be a part of the Panchayat

Elections Act 2003.  

14 On the other hand, it has been urged on behalf of the first respondent that

the High Court had been constrained to issue a direction for the acceptance of

nominations in the electronic form after sufficient material was placed before it

indicating that candidates had been prevented from filing their  nominations. It

was urged that as a result of the violent activities of the supporters of the ruling

party  in  the  state,  a  situation  had  arisen  where  it  was  not  possible  to  file

nominations personally and hence the directions which were issued by the High

Court sub-serve the cause of a free and fair election.

Section 6 of the Information Technology Act 2000 provides as follows:  

“6. Use of electronic records and [electronic signatures] in  Government  and  its  agencies.  -  (1)  Where  any  law provides for-

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(a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner;

(b)  the  issue  or  grant  of  any  licence,  permit,  sanction  or approval by whatever name called in a particular manner;

(c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have  been  satisfied  if  such  filing,  issue,  grant,  receipt  or payment, as the case may be, is effected by means of such electronic  form  as  may  be  prescribed  by  the  appropriate Government.

(2) The appropriate Government may, for the purpose of sub- section (1), by rules, prescribe -

(a) the manner and format in which such electronic records shall be filed, created or issued;

(b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause (a).”

Article 243K provides thus:  

243K.  (1) The superintendence, direction and control of the preparation  of  electoral  rolls  for,  and  the  conduct  of,  all elections  to  the  Panchayats  shall  be  vested  in  a  State Election  Commission  consisting  of  a  State  Election Commissioner to be appointed by the Governor.

(2)  Subject  to  the  provisions  of  any  law  made  by  the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of  a High Court and the conditions of service  of  the  State  Election  Commissioner  shall  not  be varied to his disadvantage after his appointment.

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(3) The Governor of a State shall, when so requested by the State  Election  Commission,  make  available  to  the  State Election Commission such staff as may be necessary for the discharge  of  the  functions  conferred  on  the  State  Election Commission by clause (1).

(4)  Subject  to  the  provisions  of  this  Constitution,  the Legislature  of  a  State  may,  by  law,  make  provision  with respect  to  all  matters  relating  to,  or  in  connection  with, elections to the Panchayats.”

15 The State Election Commission has been constituted pursuant to Article

243 K.  It is entrusted inter alia with superintendence, direction and control over

the electoral  process.   The State  Election Commission has been established

pursuant to the above constitutional dispensation under the provisions of Section

3 of the West Bengal State Election Commission Act 1994. The High Court was

cognizant of the fact that the State Election Commission does not fall within the

ambit of Section 6(1)(a) of the IT Act 2000. Indeed, the High Court noticed this

position in its following observations:

“The State Election Commission has been constituted under Section 3 of the West Bengal State Election Commission Act, 1994  (hereinafter  referred  to  as  the  Act  of  1994)  with Constitutional  sanction.  It  therefore  does  not  strictly  come within the ambit of Section 6(1)(a) of 2000 to be a body or agency owned or controlled by the appropriate Government. Similarly, the State Government is not called upon to make rules in terms of section 90 of the Act of 2000 in respect of filing of nomination forms through e-mail.”

16 Despite having noticed the above position in law, in our view correctly, the

High  Court  proceeded  to  issue  a  mandamus  directing  the  State  Election

Commission  to  accept  nominations  in  the  electronic  form.  While  the  Division

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Bench of the High Court may have been guided by a desire to ensure a free and

fair election, the direction to accept nominations in the election form has clearly

transgressed the permissible area within which the jurisdiction under Article 226

could have been exercised. The jurisdiction under Article 226 has to be exercised

in a manner consistent with law. The Panchayat Elections Act contains detailed

provisions in Part VI for the conduct of elections. Chapter VII contains provisions

for the nomination of candidates. Sub sections 1 and 2 of Section 46 require that

nominations  have to  be  delivered  in  person by the candidate or  through the

proposer:  

“46. (1) On or before the date appointed under clause (a) of section 43 each candidate shall,  either in person or  by his proposer, between the hours as may be prescribed, deliver, to the Panchayat Returning Officer at the place specified in this behalf  in the notice issued under  section 44,  a nomination paper completed in the prescribed form and signed by the candidate and by a voter of the constituency as proposer:  

Provided that no nomination paper shall be delivered to the Panchayat  Returning  Officer  on  a  day  which  is  a  public holiday.  

(2)  Without  prejudice  to  the  generality  of  the  provisions contained in sub-section (1), if the Commission, on receipt of complaints from the intending candidates or the recognize/ed political parties, either from or through the District Panchayat Election Officer or its own machinery or any other agency, is satisfied that there is reasonable apprehension of prevention of,  or  obstruction to,  the intending candidates from making nominations at the place or before the authority for the Gram Panchayat and Panchayat Samiti constituencies specified in the notice under section 44, the Commission may, by order, issue  a  direction  to  the  Panchayat  Returning  Officer appointed for any Block, to depute one Assistant Panchayat Returning Officer  at  the office of  the Sub-Divisional  Officer having jurisdiction, for receiving nomination papers within the specified date and hour from the intending candidates for one

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or more Gram Panchayat or Panchayat Samiti constituencies, as the case may be:  

Provided that the Commission may also, by the said order, extend the last date for making nomination for one day and also direct that all the nomination papers received under sub- sections (1) and (2) for any Gram Panchayat or Panchayat Samiti constituency, as the case may be, shall be taken up by the  Panchayat  Returning  Officer  for  scrutiny  of  all  such nomination papers, at one sitting, one after another, in terms of the notice under section 44:  

Provided  further  that  on  receipt  of  such  order  of  the Commission, the Panchayat Returning Officer shall  arrange to display a notice accordingly in his office and in the office of the  subdivisional  officer  and  District  Panchayat  Election Officer  and shall  also  arrange for  wide  publicity  within  the polling area.”

17 Section 47 stipulates that in order to be declared nominated for election

from a constituency, a candidate must deposit or cause to be deposited in cash

with the Panchayat returning officer, the amounts as stipulated in the provision.

Under  Section 48,  the Panchayat  returning officer,  on receiving a nomination

paper  under  Section  46(1),  is  required  to  inform  the  person  delivering  the

nomination of the date, time and place fixed for scrutiny. Thereafter, a scrutiny

takes place under Section 49. Section 50 provides for withdrawal of nominations

and Section 51 for  the preparation of  a list  of  contesting candidates and the

allotment of symbols. Section 52, thereafter provides for the publication of a list

of  contesting candidates.  Chapter I  of  Part  IV of  the West Bengal  Panchayat

Elections  Rules  2006  contains  supplementary  provisions  inter  alia for  the

nomination of candidates.

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18 The  provisions  contained  in  the  Panchayat  Elections  Act  and  rules

constitute a complete code in regard to the conduct of the election, including in

the matter of filing of nominations. Neither the Panchayat Elections Act nor the

Rules contemplate the filing of nominations in the electronic form. Any reform of

the electoral process to permit the filing of nominations electronically would have

to be carried out by a legislative amendment. The High Court ought not to have

issued a mandatory direction of this nature in the face of the specific provisions

contained in the Panchayat Elections Act and Rules.  

19 Moreover, the election process had already been initiated. The last date for

the filing of nominations was over. The directions issued by the High Court are in

the teeth of the settled principle of self-restraint which governs the exercise of the

jurisdiction under Article 226 once the election process commences. Moreover,

such a  direction  would  be  contrary  to  the  provisions  of  Article  243 O of  the

Constitution. In this view of the matter, we are of the view that the High Court was

in error in issuing directions for the acceptance of nominations in the electronic

form. The judgement of the High Court would accordingly have to be set aside.  

20 While  issuing  notice in  these proceedings on 10  May 2018,  this  Court

directed that the election which was scheduled to take place on 14 May 2018

shall proceed in accordance with law and upon its conclusion, the results would

be notified.  However, the State Election Commission was directed not to notify

the results in respect of constituencies where there was no contest, without the

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leave of the Court. On 3 July 2018, when the proceedings were taken up, this

Court was informed by Mr P S Patwalia, learned Senior Counsel appearing on

behalf of the BJP – West Bengal Unit that at the Panchayat level as many as

16,860 seats have remained uncontested out of a total of 48,650 seats; for the

Panchayat Samitis, 3,096 seats out of the 9,217 were uncontested while in the

Zila Parishads 203 out of the 825 seats were uncontested. An affidavit has been

filed setting out the data in relation to uncontested seats, on behalf of the State

Election Commission. The data placed on the record indicates that out of a total

of  58,692  seats  combined  for  Gram Panchayats,  Panchayat  Samiti  and  Zila

Parishads, 20,159 seats have been uncontested. 3,096 seats out of the 16,860

seats representing 36.1 per cent of the total seats for Gram Panchayats have

been uncontested. In the case of the Panchayat Samitis, 33.5 percent of seats

were uncontested while 24.6 percent seats for Zilla Parishads were uncontested.  

21 As regards the uncontested seats, the following submissions have been

urged before this Court on behalf of the State Election Commission:

(i) The State Election Commission has been alive to the need to conduct a

free and fair election and after the election took place on 14 May 2018,

it ordered a re-poll in 572 booths where problems had occurred;

(ii) The  State  Election  Commission  had  received  only  1770  complaints

and, as such, it would be incorrect to postulate that the elections of all

the 20,159 uncontested seats have been vitiated.

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22 These  submissions  have  been  supplemented  on  behalf  of  the  State

government  by Mr Vikas Singh, learned senior counsel who urged that : (i) this

Court should not exercise its jurisdiction to interfere with the declaration of the

results of uncontested seats, once the process has  been completed; (ii) under

the provisions of Section 7 of the West Bengal Panchayat Act 1973  the term of

the panchayats is only five years after which no extension is permissible; (iii) if

the declaration of results to the uncontested seats are not allowed to be effected,

it  would  be  impossible  to  constitute  the  panchayats,  resulting  in  a  failure  of

allocation of funds for constitutional purposes;(iv) in the absence of any cogent

complaint of obstruction in the filing of nominations a generalised presumption

cannot be made in respect of each one of the nearly 20,000 seats. It has been

submitted that as many as 3,170 panchayats are non-functional as a result of the

stay on the declaration of results.                        

23 Mr Kalyan Bandopadhyay, learned senior counsel appearing on behalf of

the All India Trinamool Congress submitted that: (i) the uncontested seats were

not the subject matter of the writ petition before the Hon’ble High Court; neither

were there any pleadings, nor were there any prayers; (ii)  interference of this

Court in regard to the uncontested seats will result in setting the election process

at naught in the absence of the affected parties; (iii) once the election process

has commenced, it cannot be arrested and the only remedy is to challenge the

outcome  of  the  election   by  filing  an  election  petition  and   (iv)  under  the

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provisions of  Article 243 E, the term of every panchayat is five years and no

longer.  Article 243 O imposes a bar on the interference by the Court.  At this

stage,  any  interference  would  seriously  impede  the  constitutional  process  of

constituting the panchayats.  

24 Section 64 of the Panchayat Elections Act lays down the procedure to be

followed in the case by contested and uncontested elections. If at any election of

a gram panchayat, panchayat samiti or zilla parishad, the number of contesting

candidates is less than the number of seats to be filled in a constituency, the

panchayat returning officer shall forthwith declare all such candidates to be duly

elected.  Under Section 77, as soon as may be, after the result of an election has

been  declared,  the  panchayat  returning  officer  must  report  the  result  to  the

District  Panchayat  Election  Officer;  to  the  Director  of  Panchayats  and  Rural

Development and to the Commission. The Director is under a duty to cause the

declarations of the names of the elected candidates to be published in the Official

Gazette.   

25 Any dispute regarding the election has to be pursued in the manner which

is provided in Part VII of the Panchayat Election Act.  

Under Section 79(1):

“79. (1) If any dispute arises as to the validity of an election under this Act,  any person entitled to vote at such election may,  within  thirty  days  after  the  date  of  declaration  of  the results of such election, file a petition, calling in question such

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election  on  one  or  more  of  the  grounds  specified  in  sub- section (1) of section 93 and section 94 –

(a) before the Civil Judge having jurisdiction where such election is in respect of a  Gram Panchayat or a  Panchayat Samiti,

(b) before the District  Judge of the district,  where such election  is  in  respect  of  a  Zilla  Parishad or  the  Siliguri Mahakuma Parishad.”

Section 80 stipulates that no election to a panchayat shall be called into question

except  by an election petition presented in accordance with  Part  VII.  In  fact,

Section 84 (1) also stipulates that the Court  shall  dismiss an election petition

which does not comply with the provisions of Section 79 or Section 80.  

26 The Panchayat Elections Act is a complete code in regard to the conduct

of  the  poll  and  for  the  resolution  of  disputes  concerning  the  validity  of  the

election.  Article 243K entrusts the superintendence, direction and control over

the conduct of all elections to the panchayats in the State Election Commission.

Clause (b) of Article 243 O stipulates thus:

“243-O. Notwithstanding anything in this Constitution—  

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.”

27 There is merit in the submission that the discipline which is mandated by

the provisions of the Constitution and enforced by the enabling state law on the

subject must be maintained. Any dispute in regard to the validity of the election

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has to be espoused by adopting a remedy which is known to law namely through

an election petition.  It is at the trial of an election petition that factual disputes

can be resolved on the basis of evidence. This principle has been consistently

adhered to in decisions of this Court. In  Boddula Krishnaiah  (supra), a three

Judge  bench,  adverted  to  the  decisions  of  the  Constitution  Bench  in  NP

Ponnuswami v  Returning Officer, Namakkal Constituency5 and in  Lakshmi

Charan Sen v AKM Hassan Uzzaman6. After referring to Ponnuswamy, it was

observed:

“In  NP  Ponnuswamy  v  Returning  Officer,  Namakkal Constituency a Constitution Bench of this Court had held that having  regard  to  the  important  functions  which  the legislatures have to perform in democratic countries,  it  has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising  out  of  elections  should  be  postponed  till  after  the elections are over so that the election proceedings may not be  unduly  retarded  or  protracted.   In  conformity  with  the principle,  the  scheme  of  the  election  law  is  that  no significance should be attached to anything which does not affect  the ‘election’;  and if  any irregularities are committed, while it is in progress and they belong to the category or class which under the law by which elections are governed, would have  the  effect  of  vitiating  the  ‘election;  and  enable  the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress.”

The binding principle must be followed.

5 1952 SCE 218 6 (1985) 4 SCC 689

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28 The intervention of this Court has been sought on the basis that free and

fair  elections are a part  of the basic feature of  the Constitution.   Mr Patwalia

urged, the entire electorate vicariously is a party to the contest.  Exercise of the

jurisdiction by this  Court  has been sought  on the ground that  the process of

election was polluted, there having occurred large scale obstructions to the filing

of nomination papers by candidates.  The submission is that as many as 20,159

seats have gone uncontested and an overwhelmingly  large majority  of  them

have been bagged by candidates supported by the ruling dispensation in the

State of West Bengal. Mr Patwialia urged that there is contemporaneous material

to  indicate  that  as  a  result  of  obstruction  and  violence,  candidates  were

prevented from filing their  nominations.  Mr Patwalia invoked the observations

contained in the judgment of this Court  in  Mohinder Singh Gill v  The Chief

Election Commissioner,  New Delhi7,  emphasising  the need to  maintain  the

purity of the election process.  

29 Having  given  our  anxious  consideration  to  the  rival  submissions  which

have been urged at the bar, we find that there are several reasons why it would

be  inappropriate  for  this  Court  to  exercise  its  jurisdiction  to  interdict  the

declaration  of  results  of  the  uncontested  seats.   First  and  foremost,  it  is

necessary for the Court to notice that no specific relief was claimed before the

High Court in regard to those seats where there was no contest.  Neither were

there adequate pleadings nor indeed were specific  prayers set  up before the

7 (1998) 1 SCC 405

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High Court when its jurisdiction under Article 226 was invoked. The proceedings

before the High Court were brought by several political parties, each of whom

would have been well  aware of  the situation on the ground and the need to

formulate an adequate basis in fact to invoke the jurisdiction of the High Court.

Absent such a factual foundation, the High Court dealt with the only issue which

had been addressed, which was the plea that nominations should be allowed to

be filed in the electronic form.  No other plea was raised.  The second important

consideration which must weigh with the Court is that if the above submission is

accepted,  election  results  to  over  20,000  seats  will  be  set  at  naught  in  the

absence  of  the  affected  parties  before  the  Court.   Thirdly,  once the  election

process has commenced, it is trite law that it should not be interdicted mid stage.

The electoral process is afforded sanctity in a democracy. That is the reason why

in a consistent line of precedent, this Court has insisted upon the discipline of the

law being followed so that any challenge to the validity of an election has to be

addressed by adopting the remedy of  an election petition provided under the

governing statute.  For  this  Court  to  set  aside elections to over  20,000 seats

would  be  to  prejudge  the  basic  issue  as  to  whether  in  each  of  those

constituencies, the election stands vitiated by obstruction having been caused to

candidates from filing their  nominations.   A general  assumption of  this nature

cannot  be  made.  Ultimately  whether  this  is  correct  would  depend  upon  the

evidence adduced in the facts of individual cases where such a grievance has

been  made  in  an  election  petition.   The  Court  has  been  apprised  that

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approximately 1,700 complaints were filed and about 168 election petitions have

been  instituted.  We  are  emphatically  of  the  view  that  any  challenge  to  the

election must take place in a manner which is known to law.   

30 Under Section 79(1) a period of 30 days is prescribed for instituting an

election petition,  where a dispute arises as to the validity of  an election. The

period of 30 days commences after the date of the declaration of the results of

the election.  The pendency of these proceedings may have dissuaded aggrieved

individuals  from  seeking  recourse  to  the  remedy  of  an  election  petition,

particularly  after  the interim order  of  this  Court  restraining  the  State  Election

Commission from notifying the results of the constituencies where there was no

contest. While we are of the view that the validity of the elections must be tested

in election petitions under Section 79(1), the question as to whether there was a

large scale obstruction from filing nominations is a serious matter which needs to

be resolved.  This is particularly because even the Election Commission, as we

have seen, had proceeded to take notice of the grim situation while extending the

date  for  the  filing  of  nominations.  Having  regard  to  the  seriousness  of  the

allegations and bearing in mind the fact that these proceedings were pending, we

are of the view that it would be necessary to exercise the power under Article 142

of  the  Constitution  to  extend  the  period  of  30  days  for  the  filing  of  election

petitions in respect of the uncontested seats.  

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31 For these reasons, we are of  the view that challenges in regard to the

validity of the elections to the uncontested seats in the panchayats, panchayat

samitis  and  zilla  parishads  must  also  be  pursued  in  election  petitions  under

Section 79(1) of the Panchayat Elections Act.  We leave it open to any person

aggrieved to raise a dispute in the form of an election petition in accordance with

the provisions contained in the Panchayat Elections Act. In exercise of the power

conferred by Article 142, we direct that the period of 30 days for filing election

petitions in respect of the uncontested seats shall commence from the date of the

publication of the results in the Official Gazette.

32 For the reasons indicated earlier, we allow the appeals and set aside the

impugned  judgment  and  order  of  the  Calcutta  High  Court  directing  the

acceptance of nominations in the electronic form. Pending applications, if any,

are also disposed of. There shall be no order as to costs.

….....................................CJI  [DIPAK MISRA]

 …......................................J   [AM KHANWILKAR]

….........................................J   [Dr D Y  CHANDRACHUD]

New Delhi August 24, 2018